Imperative of aviation law report to legal research
The growing corpus of specialised Law Reports on various aspects of Law such as Insurance, Shipping, Company Law, Taxation and Labour law is a most welcome development in Nigeria.
Law Reports not only help to hasten legal research and the ease of identifying judicial precedents but also facilitate securing of authorities to support legal opinions, submissions and addresses in court at all levels and scholarly publications. It is in this vein that the Aviation Law Reports of Nigeria has been introduced into the milieu of Nigerian law reports as a specialised publication in the niche technical area of aviation and aircraft Law and practice in Nigeria.
This is the first edition of the Aviation Law Report of Nigeria (2019) 1 AVLRN. It contains ten (10) well-selected decisions of the Supreme Court, the Court of Appeal and the Federal High Court, which were published with the consent of the heads of these courts. The decisions cover topical issues relating principally to the law and practice of using aircraft for the commercial international transportation of passengers, their luggage and/or cargo between Nigeria and other contracting States pursuant to the Warsaw Convention 1929 and its successor treaty, the Montreal Convention, 1999.
It is observed that the reported cases are arranged in a sequence that chronicles the development of aviation law and practice in Nigeria from the colonial era to present-day independent Nigeria. It also captures the transition and transfer of cases from the State High Court to the Federal High Court pursuant to the 1999 Constitution of the Republic of Nigeria.
The publication has been given a well-deserved endorsement by the Honourable Chief Justice of Nigeria, Justice Ibrahim Tanko Mohammad CFR, GCON in the Foreword to the Law Report where he observed, inter alia, “Given the importance of the aviation sector to the Nigerian economy, the AVLRN will no doubt be a great addition to the growing body of law reports in Nigeria. It is the first of its kind in this practice area and comes at a very auspicious time to fill the vacuum created by the absence of an authoritative and comprehensive law report with a special focus on aviation. I without any hesitation recommend this report to judges, academicians, legal practitioners, law students and every person who is interested in the practice of aviation law.”
The development of aviation law and practice in Nigeria can be traced to the pre-independence era when the British colonial administration being a party to the Warsaw Convention made it applicable to Nigeria by virtue of the Carriage By Air (Colonies, Protectorates and Trusts Territories) Order 1953. The Convention introduced uniformed Rules to regulate the liability of Carriers for international carriage of persons, luggage and cargo from one destination to another. The Warsaw Convention covering carriage by air is very similar to the Hague Rule, which was implemented by many nations in 1924 imposing standards upon commercial carriers for the international carriage of goods by sea.
This historical background is well reflected in the first case reported in the Law Report-Joseph Ibidapo v Lufthansa Airlines (a 1989 case) where the Supreme Court debunked the Appellant’s argument that the Warsaw Convention ceased to be applicable in Nigeria after independence in 1960 is a part of the received English Law. The Supreme Court applying the principle of devolution and state succession held inter alia, agreeing with the Justices of the Court of Appeal that “the 1953 Order not having been repealed upon attainment of independence in 1960 effectively became part of our laws as if it had been enacted pursuant to the Constitution of the Federation of Nigeria 1960.
Accordingly, the Warsaw Convention remained applicable as part of Nigerian law pursuant thereto until the Order was expressly repealed. Consequently, the Appellant’s cause of action, which accrued in January 1987 was caught by the two (2) year statutory limitation and therefore could not be maintained by an action commenced in March 1989. Another case in point on this position of the law is British Airways v Atoyebi (2010) where the Court of Appeal explained that pursuant to another Colonial Order Carriage By Air (Non-International Carriage) (Colonies Protectorate and Trust Territories) Order 1953 No, 1206, the Convention was also made applicable to local and domestic carriage in Nigeria.
Jurisdiction over Aviation Cases
The issue of jurisdiction has continued to pose a sticky bone of contention between the State High Court and the Federal High Court both being courts of first instance in Nigeria. The question, which re-echoes, is -Which court has jurisdiction over an aviation-related cause of action? Section 251(1)(K) of the 1999 Nigerian Constitution stipulates that the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court of the first instance in respect of matters relating to aviation and safety of aircraft. The Federal High Court Act of 1973, which stipulated in Section 7(1) (k) that the Federal High Court shall have such jurisdiction, established the Federal High Court. The second decision reported in the AVLRN-Cameroon Airlines v Otutuizu deals extensively with this issue.
In this decision, the Supreme Court unequivocally affirmed that the Federal High Court has exclusive jurisdiction over aviation matters by virtue of the said Section 251 (1) (K) of the 1999 Constitution. The Supreme Court also endorsed the applicability of the Warsaw Convention as amended by Hague Protocol of 1955 stating that by Section 315 (1) of the Constitution, the protocol was only an amendment to an existing law in Nigeria relating to the rights and liabilities of Carriers by air.
The Supreme Court also emphasised the principle that Conventions provide uniform international code in the areas, which they cover, and countries, who are signatories of these Conventions, remain obliged to apply them without recourse to their respective domestic law. This principle was also endorsed in the carriage by sea decision of JFS Investments Ltd v Brawal Line Ltd SC 18 NWLR in relation to the Hague Rules applicable also in Nigeria.
Carriers’ Rights and Liabilities
The decision in the Cameroon Airline case at the trial and appellate Courts also highlights the issue of the limits of a carriers’ liability, particularly situation where a carrier cannot rely on the statutory limits of liability (i.e. where damage is caused by the carrier’s willful misconduct or that of its agent within the scope of its employment). Sections 22- 25(1) of the Convention states this cardinal principle of international carriage, which also applies to carriage by sea under the Hague Rules and other similar liability regimes.
The Law Report proceeds to report other important decisions of the Court of Appeal and Federal High Court, which expound on/or, endorse important carriage by air principles. Notably the third reported case is the Court of Appeal decision in J. E. Oshevire v British Caledonian Airways Ltd, where the cause of action accrued in December 1979 but the action at the lower court was not commenced until September 1988. Regrettably, the claim in the matter, which clearly amounted to wilful misconduct could not be required in damages because it was time-barred not having been commenced within two (2) years of the accrual of the cause of action as required by section 29 of the Convention. The fact that parties were in prolonged “discussions” was totally irrelevant. The Court further held that the limitation period could not be” suspended or interrupted even by agreement of the parties” (Ogundere JCA).
It is trite that special damages must be specifically quantified and proved against a Carrier. On the other hand, the Court, relying on the opinion and judgment of the “reasonable man”, would quantify general damages based on the circumstances of each case. This principle of damages was well expatiated upon in the second Court of Appeal decision reported in the AVLRN-Kabo Air Ltd v Rickey Tafa. This case was in respect of domestic carriage by air. The Court of Appeal, whilst awarding a refund of the cost of the ticket for the aborted trip to Maiduguri from Lagos (special damages) reduced the quantum of general damage awarded by the Lower Court, on the ground that the award of the sum of N1, 000,000 was ‘’quite excessive in all the circumstances considered’’ and reduced same to N250, 000.00, which in their view met the justice of the case.
Limits of Liability
It is most commendable that the Law Report extends its coverage to include five (5) notable Federal High Court decisions which brilliantly applied the various principles discussed above and also gave attention to the central issue of limitation of liability of Carriers under the Convention, for example, USD 20 per kilo for checked-in luggage, whose value was not declared and paid for as may be required. It is important to recognise that, as in every trial, a case is won or lost based on the strength or weakness of the evidence placed before the Court. The Court does not conjecture or produce evidence for a claimant. Issues as to delay in delivery of luggage, the weight of checked-in baggage, cabin luggage, the value of lost items and non-production of receipts are vital to a Claimant’s case. These principles/issues were well demonstrated in the trial and outcome of these reported cases, which are:
1.Blessing Aruocha v Royal Dutch Airline Ltd (KLM)
2.Aloysius Ezeonugo v Ethiopian Airlines
3. Abone Festus Chukwuemeka vKLM Royal Dutch Airlines
4. Okekeocha Nathan Chukwuka v KLM Royal Dutch Airlines
5. Dr. (Most Rev.) Olapade Agoro v KLM Royal Dutch Airline
Montreal Convention 1999
The tenth and last case reported in the Law Report is the 2018 Court of Appeal, Lagos Division decision in Saudi Arabian Airlines and Anor. v Jahlive Sadakka Nigeria Ltd based on the Montreal Convention 1999, the successor regime or replacement treaty to the Warsaw Convention. This new regime, which was domesticated in Nigeria by virtue of the Civil Aviation Act, 2006, seeks to grant passengers additional protection and extends certain rights to airlines. It fundamentally changed the basis of limitation of liability from one of ‘’negligence and wilful misconduct’’ under the Warsaw Convention to one of ‘’intention to cause damage or recklessness with the knowledge that damage would probably result’’ under Article 22(5) of the Montreal Convention. There is the usual shifting of the burden of proof where the lost cargo was handed over to a Carrier or its agent and evidenced, for example by a receipt. In this case, the onus shifts to the Carrier to justify its action otherwise it will lose the right to rely on the statutory limits of liability.
This case also illustrates the new method of calculation of damages, which has shifted from Gold francs/USD per kilogram under the Warsaw Convention to Special Drawing Rights (SDR)/USD under the Montreal Convention. A Claimant is required to lead evidence to establish the value of one (1) SDR in in USD at the material time of loss or damage. The same principle of ‘’ breaking the limit’’ discussed earlier applies under the new regime.
It is highly commendable that the reported cases give illumination and guidance into the salient and technical principles of Carriage by Air in one handy package. The quality of editorial work and quality of publication is equally commendable. It is envisaged that subsequent editions will endeavour to address reported cases dealing with Aviation Insurance, Subrogation Rights, Aircraft Sale and Purchase, Wet and Dry Leasing of Aircraft and other matters which fall under the constitutional purview of Section 251 (1)(k). It is apposite to end this exercise by stating that this review has tried to focus on the key principles of Aviation Law and Practice and not on the merits of each reported case. It is expected that this Law Reports series will become a permanent and regular feature of the Nigerian legal resource landscape in the years ahead.
Ilogu, a Senior Advocate of Nigeria, is an International Transportation Law Practitioner and senior partner, Foundation Chambers.